Can unlawful evidence obtained abroad be used in Spanish proceedings?

We analyse the extent to which the fundamental rights recognised in our Constitution are binding with respect to evidence obtained abroad.

Global interconnection is a reality that is transcending from the merely economic to the justice sector and, in this article, we turn our attention from this expansion to a specific challenge posed by evidence obtained abroad; that is, whether the fundamental rights of our Constitution are also binding with respect to evidence obtained abroad.

Before going into this, we would like to warn the reader (especially the foreign reader) of the decisive effect with respect to unlawful evidence which is ordered by Article 11 of the Organic Law of the Judiciary, which reads: ‘Evidence obtained, directly or indirectly, in violation of fundamental rights or freedoms shall have no effect’.

Factual assumption

To better understand the problem, let us imagine a concrete case: in country ‘A’, the police search the house of a suspect without a warrant or an equivalent decision. In the course of the search, incriminating evidence is collected and sent to Spain (either because a Spanish judge has previously requested such a search from country A or because of an exchange of information between A and Spain), and this evidence is used in Spanish criminal proceedings against the same suspect.

Issues raised

In this situation, two main questions arise: (i) whether the fundamental rights recognised in Articles 14, 15 to 29 of the Spanish Constitution bind Spanish judicial bodies with respect to evidence obtained abroad, and (ii) which legislation applies.

Do fundamental rights have binding force in what happened abroad?

The answer must be in the affirmative. Yes, the fundamental rights enshrined in the Spanish Constitution and the International Treaties to which Spain is a party must be respected in any criminal proceedings taking place in Spain, even if the evidence was obtained abroad.

The Constitutional Court has made it clear that evidence obtained in violation of fundamental rights, even if obtained abroad, cannot be admitted in a judicial proceeding in Spain. Constitutional Court Ruling 13/1994 of 17 January 1994 establishes that Spanish courts must be particularly rigorous in admitting evidence obtained abroad when there are indications that fundamental rights have been violated. More specifically, this Judgment states that:

‘they [the national judicial authorities]are obliged to prevent the infringement of fundamental rights, which bind them as objective bases of our legal system, even if that infringement is expected from foreign authorities’.

For its part, Constitutional Court Judgment 82/2006, of 13 March, explains, even more if possible, the reason for this binding force, by determining that:

“the special binding force of fundamental rights which “as objective bases of our legal system, are imposed on public authorities unconditionally (STC 13/1994, FJ 4)”, that is, they are imposed on Spanish public authorities, not only in their relations ad intra, but also in their relations ad extra (STC 91/2000, 30 March, FJ 7).

In order to determine what the essential binding content of fundamental rights consists of when they are projected ad extra, we have also declared that the Spanish Constitution safeguards absolutely those rights and contents of rights which belong to the individual as such and not as a citizen, or in other words … those which are indispensable for the guarantee of human dignity’.

This implies that, although the Spanish authorities cannot control how evidence is obtained in another country, by accepting it, they must ensure compliance with the Spanish Constitution.

This approach is based on the protection of fundamental rights, such as the right to due process or the right to privacy, which do not lose their value just because the police action took place in another country. In other words, the Spanish judiciary cannot admit as evidence evidence that, had it been obtained in Spanish territory, would have been declared null and void under Article 11 of the Organic Law of the Judiciary. This view ensures that the fundamental principles, rights and freedoms of the Spanish constitutional framework are not violated or weakened in the context of international investigations.

In the proposed scenario, as the police of country ‘A’ have carried out the house search without a warrant or other equivalent resolution (and, also, the suspect has not allowed the police to carry out the search), they would have acted contrary to Art. 18.2 EC, which states that: “The home is inviolable. No entry or search may be made without the consent of the owner or a court order, except in cases of flagrante delicto”.

What legislation is applicable to events occurring abroad?

Now, from what point of view should the actions of the police of country ‘A’ be assessed? Should these actions be reviewed on the basis of Spanish police regulations, or perhaps the Spanish courts should classify the actions of the police of ‘A’ as unlawful or irregular?

Regardless of the bilateral or international regulations regarding the way in which foreign judicial bodies collaborate with Spanish ones, we must take as a starting point that, as Spain is a democratic state governed by the rule of law, it cannot interfere with or directly question the sovereign decisions of another state, including with regard to the way in which they carry out their investigations and police actions. In other words, it cannot interfere in the sovereignty of another state, so that it cannot apply foreign law to qualify the actions of a police officer of ‘A’ as unlawful or irregular.

But what has been concluded in the previous section is not an interference in foreign sovereignty, given that the Spanish judicial body, in order to determine whether art. 18.2 of the Constitution has been respected, does not make a legal qualification of what the police officer of ‘A’ has done, but rather it is a fact, a factual question to be subsumed or not in art. 18.2 of the Constitution.

Therefore, and apart from evidentiary problems, the Spanish judiciary must have evidence to indicate whether the actions of A’s police officer required a warrant, and thus be able to declare that the suspect’s right to inviolability of the home has been violated.

It would be a different matter if country A allows its police to search homes without any kind of permission, which is beyond the scope of this article, since many other elements than those raised here would have to be analysed.

Sovereignty and the force of fundamental rights

In conclusion, we can say that obtaining evidence obtained abroad is subject to a rigorous examination of compatibility with Spanish fundamental rights. If evidence has been obtained in violation of these rights, it cannot be used in Spain. Thus, any person affected by these circumstances must request the exclusion of the evidence by invoking its nullity for violation of fundamental rights, which is supported by the jurisprudence of the Spanish Constitutional Court.

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